While many mediation providers have incorporated the Guidelines into their practice, there remain gaps in practice areas. This editorial addresses two major areas that need work. 1) To a large extent, codes of conduct still do not reflect current disability rights and obligations in the mediation context. 2) Organizational providers, by and large, have not implemented effective procedures for accommodating mediation participants who have disabilities.
Codes of Conduct
The Model Standards of Conduct for Mediators, the most widely accepted mediation standards in the U.S., were written before the ADA was passed. The drafters likely felt they were doing a service to persons with disabilities by limiting their participation in mediation under a broadly defined circumstance. They wrote: “A mediator shall withdraw from a mediation or postpone a session if the mediation is being used to further illegal conduct, or if a party is unable to participate due to drug, alcohol, or other physical or mental incapacity.” However, this approach could also (illegally) exclude persons who, with accommodation, could be active participants in the mediation process and have a greater say over decisions affecting their lives. Practitioners need to understand their obligation to engage in an interactive process with the person with a disability to ascertain whether accommodation would enable their full participation. Also, the linking of disability with criminal activity and substance abuse is viewed by many as stigmatizing.
In Spring 2002, Richard Teitleman, Chair of the American Bar Association Commission on Disability Law, sent a letter to state and local ABA affiliates. Judge Teitelman wrote that the Commission and the ABA’s Section on Dispute Resolution would like to collaborate with them to ensure that ADR programs in their localities provide fair and accessible services to persons with disabilities. Judge Teitelman referred specifically to codes of conduct. The Commission’s concern is that practitioners fulfill their legal obligation to ensure the full participation of mediation participants who have disabilities by providing them with disability accommodations.
Judge Teitelman’s invitation was accepted by the Alternative Dispute Resolution Committee and the Committee on Legal Issues Affecting People with Disabilities of the Association of the Bar of the City of New York. The City Bar committees responded, as have a number of other states, localities and organizations, by embarking on a joint project to promote the revision of mediator standards and codes of conduct with regard to the participation of persons with disabilities in mediation. The Committees developed the following draft language for local providers to consider:
1) A mediator shall withdraw from a mediation or postpone a session if the mediation is being used to further illegal conduct, or if a party is unable to participate due to drug or alcohol use.
2) When disability-related obstacles, including impaired capacity, may interfere with the full participation of any participant in a mediation, the mediator shall determine, with the individual, what accommodations, including support, may enable that individual’s effective participation.* To the extent required by law, the mediator shall provide the accommodation, and/or, if appropriate, convey the information regarding the accommodation needed to the responsible entity. If no accommodation can be provided to enable the party’s participation, the mediator may withdraw or postpone the session.
*Under the best circumstances, disability access will be arranged by the appropriate program representative and/or the mediator, prior to the session.
This draft proposed language can be a starting point for organizational providers and professional organizations to adapt for their own needs, as well as a discussion point for practitioners.
The code of conduct issue, discussed above, refers specifically to the session mediator’s obligation. What about the organizational provider’s obligation? In addition to an accessible session, the intake and case development processes are required to be accessible. Organizational providers also have obligations related to the codes issue to ensure that their mediators, whether internal, contracted out or volunteer, comply with the law.
Making the connection
The law provides clear guidance on both issues. Under various laws, including ADA Titles I (Employment), II (Public Service), and III (Public Accommodations) and the Rehabilitation Act, organizational providers, such as court programs, community mediation centers, public sector agencies and workplaces have obligations to make their programs, policies and procedures accessible.
And the issues have been addressed by related ADA case law. For example, private mediators are considered “public service establishments” under Title III, with responsibility to provide accessible programs and services. There have been numerous cases finding that other such entities (e.g., dentists and lawyers) are obligated to make their programs and services accessible.
But there is still a disconnect. Individual mediators and organizational providers need to collaborate to be clear about respective and overlapping obligations. By working together they can follow the law and mediator ethics and ensure the full participation of parties.
The field needs an analysis of legal and ethical obligations that come to bear when persons with disabilities participate in mediation. Please work in your community to encourage the modification of ethics language in local mediation programs. Help develop policies and procedures so that organizational providers can enable the full participation of people with disabilities in mediation. Share reports of work with us on this page, or on the ADA Mediation Forum , so that we can learn from each other and develop a culture of mediation that is inclusive and supports the self-determination of people with disabilities in mediation.